October 10, 2005

Low Clearance

In January 2006, a court in Northern Virginia will hear a case in which, for the first time, the federal government has charged two private citizens with leaking state secrets. CBS News first reported the highly classified investigation that led to this prosecution on the eve of the Republican National Convention. On August 27, 2004, Lesley Stahl told her viewers that, in a "full-fledged espionage investigation," the FBI would soon "roll up" a "suspected mole" who had funneled Pentagon policy deliberations concerning Iran to Israel. At the heart of the probe, CBS said, was one of Washington's most powerful lobbying groups, the American Israel Public Affairs Committee (AIPAC). Within three days, the lobbyists involved were identified as AIPAC's director of foreign policy, Steve Rosen, and an Iran specialist named Keith Weissman; the mole was outed as Lawrence Franklin, an Iran analyst at the Defense Department.

But weeks and then months passed, and there were no arrests. Franklin, after initially being put on leave (and taking a job parking cars at a nearby restaurant), returned briefly to his desk at the Pentagon; and, until April, Rosen and Weissman were still writing memos, meeting journalists and government officials, and going about their daily business at AIPAC. When the indictments from the federal government finally came down this summer, none of these men were charged with spying.

Instead, all three were indicted for conspiring "to communicate national defense information … [to] persons not entitled to receive it." To the lay reader, that may simply sound like espionage-lite. After all, some of the people not entitled to receive the national defense information in this case were Israeli diplomats. But, in fact, a prosecution of this kind is unprecedented. Far from alleging the two AIPAC officials were foreign agents, U.S. Attorney Paul McNulty is contending that the lobbyists are legally no different than the government officials they lobbied, holding Rosen and Weissman to the same rules for protecting secrets as Franklin or any other bureaucrat with a security clearance. The indictment even says that, because Rosen long ago held a security clearance when he worked as an analyst for the Rand Corporation, he was duty-bound to protect any classified information he came across after the clearance expired--on July 6, 1982. "Steve Rosen and Keith Weissman repeatedly sought and received sensitive information, both classified and unclassified, and then passed it on to others in order to advance their policy agenda and professional standing," the U.S. attorney said at a press conference announcing the indictment.

But, if it's illegal for Rosen and Weissman to seek and receive "classified information," then many investigative journalists are also criminals--not to mention former government officials who write for scholarly journals or the scores of men and women who petition the federal government on defense and foreign policy. In fact, the leaking of classified information is routine in Washington, where such data is traded as a kind of currency. And, while most administrations have tried to crack down on leaks, they have almost always shied away from going after those who receive them--until now. At a time when a growing amount of information is being classified, the prosecution of Rosen and Weissman threatens to have a chilling effect--not on the ability of foreign agents to influence U.S. policy, but on the ability of the American public to understand it.

Since the inception of the national security state, the intelligence community has worried that our free press is a security risk. In an interview in 1954 with U.S. News and World Report, under the headline "We Tell the Russians Too Much," CIA Director Allen Dulles remarked, "I would give a good deal if I could know as much about the Soviet Union as the Soviet Union can learn about us merely by reading the press."

Nonetheless, the federal government has traditionally respected an implicit First Amendment right of publishers and private citizens to determine the public's right to know about national security. Without journalists' ability to disclose secret information, the executive branch would be the sole arbiter of what information the public could have about its government's foreign policy. And, when the public is kept in the dark, it's hard to combat excesses. For example, it's unlikely that the Pentagon would have taken steps to correct abuses in its detention facilities had "60 Minutes II" not obtained photographs of naked prisoners stacked in a pyramid at Abu Ghraib. Had U.S. law been similar to the British Official Secrets Act, which gives 10 Downing Street the authority to prosecute journalists for disclosing classified material, it's unlikely the public would know about the network of contractors responsible for the rendition of terrorists to nations that torture prisoners or the internal debates within the Bush administration regarding the application of the Geneva Convention. To be sure, there are cases in which the press could do great harm to national security, such as publishing the details of how we keep surveillance on our enemies. But, as any reporter who covers these matters will tell you, most of the time journalists negotiate an agreement--without the threat of prosecution--on how to report sensitive material in a way that minimizes harm to intelligence-gathering and military operations. "We've all held back information when a responsible government official makes a compelling case that it's going to cause some damage," says Newsweek reporter Michael Isikoff.

And, while every administration has made internal efforts to go after leakers, criminal prosecutions have been extremely rare. In the two major anti-leaking cases involving classified secrets brought in the last 35 years, both leakers were prosecuted for slipping government property to reporters. In the case of Daniel Ellsberg, it was a classified history of the deliberations of three administrations regarding Vietnam known as the Pentagon Papers; in the case of Samuel Morison (the only successful anti-leaking prosecution), it was classified aerial photographs of a Soviet naval aircraft carrier, which he provided to Jane's Defence Weekly. No one has ever been prosecuted--as Rosen and Weissman currently are--for conveying national security information orally, with no documents involved.

Steve Pomerantz, the former chief of counter-terrorism for the FBI, says that his division--which, in the early '90s, also investigated classified disclosure cases--never got very far in their investigations. "If you look at this as a conspiracy, then there are two parties: the leaker and the reporter," he says. "As a matter of practice, we never went near the reporters," a custom that Pomerantz contends made it nearly impossible to catch the leakers. "I never remember in my time a successful prosecution of a leak case," he says.

But, in recent years, there has been mounting pressure from both federal officials and Congress to end this custom. The reason is articles like one published by The Washington Times on August 21, 1998. The story was a profile of Osama bin Laden, following President Clinton's missile strikes on the Al Shifa chemicals factory in Khartoum and a training compound in Afghanistan. Near the bottom of the dispatch, reporter Martin Sieff wrote that bin Laden "keeps in touch with the world via computers and satellite phones." This may sound like an innocuous detail, but, according to the 9/11 Commission Report, Al Qaeda's leadership stopped using their satellite phones almost immediately after the story was published, thus eliminating the possibility of using satellite signals to locate and assassinate them. As former Clinton National Security Council officials Steve Simon and Daniel Benjamin wrote in their book, The Age of Sacred Terror, "When bin Laden stopped using the phone and let his aides do the calling, the United States lost its best chance to find him."

Troubled by the Times report and other similar incidents, Senator Richard Shelby attempted to change the nation's espionage laws in 2000, when he was the chairman of the Senate Select Committee on Intelligence. Shelby wanted to expand the category of "national defense information" to include anything from classified diplomatic discussions to more technical intelligence. President Clinton vetoed the original version of the Intelligence Authorization Act in order to block the Shelby proposal. Pentagon spokesman Kenneth Bacon said at the time that the Shelby measure would be "disastrous for journalists." The next year, with a new administration in the White House, Shelby again tried to change the espionage law, but eventually dropped the idea after Attorney General John Ashcroft promised, as he put it in a letter to Congress on October 15, 2002, to review the "current protections against the unauthorized disclosure of classified material." It is from this review that the seeds of the Rosen and Weissman indictment were sown.

Beginning in 2001, after the September 11 attacks, a group of top intelligence professionals began examining the legal authority to go after leakers. The review, commissioned by Ashcroft, ultimately concluded that the current espionage law was adequate. But, at the same time, Ashcroft implemented a policy of aggressively targeting anonymous sources who show up in newspapers touting national secrets. As he wrote to Congress in 2002, the fact "that only a single non-espionage case of an unauthorized disclosure of classified information has been prosecuted in over 50 years provides compelling justification that fundamental improvements are necessary and we must entertain new approaches to deter, identify, and punish those who engage in the practice of unauthorized disclosures of classified information."

Ironically, Shelby himself was among the first snared in the Justice Department's new anti-leaking dragnet. In the summer of 2004, the FBI recommended that the Senate Ethics Committee investigate Shelby for leaking two National Security Agency (NSA) intercepts received before the September 11 attacks to Fox News and CNN in 2002. These were the famous messages that warned, "The match begins tomorrow" and "Tomorrow is zero hour."

But the senator from Alabama was not the only one. According to a government source, the Pentagon's National Criminal Investigative division began probes in 2002--with FBI guidance--to determine who leaked secret war plans to The New York Times and The Washington Post in June 2002. At the State Department, diplomatic security launched an investigation into David Wurmser, an aide to John Bolton, for leaking a letter from Secretary of State Colin Powell to the Pentagon objecting to the Syria Accountability Act. The letter ended up being the basis for a story in The Jerusalem Post. And the White House knows all too well the problems it faces from special prosecutor Patrick Fitzgerald, who has yet to bring charges against the official who told journalist Robert Novak that Valerie Plame was a CIA officer. Fitzgerald has already sent New York Times reporter Judith Miller to jail for not revealing her source for a story about Plame that she never ended up writing. But McNulty's novel prosecution of Rosen and Weissman in many ways provides the legal test case for Ashcroft's new get-tough policy.

From the indictment, it appears that the two AIPAC officials came to the attention of the FBI at least as far back as 1999, when both lobbyists showed up in intercepted phone conversations and meetings with Israeli embassy officials. The FBI has never said publicly why it began monitoring the lobbyists' activities, but the reason may have to do with the hunt for an Israeli spy code-named "Mega." In 1997, The Washington Post was leaked a story alleging that the NSA had intercepted a communication from an Israeli intelligence officer in Washington to his superior in Tel Aviv. The Israeli agent was reportedly relaying a request from the Israeli ambassador to use a source called Mega to procure a copy of a letter detailing what assurances then-Secretary of State Warren Christopher had offered Yasir Arafat in light of the withdrawal of Israeli troops from Hebron.

According to sources inside and outside the government, the Israeli embassy has been watched by the FBI ever since the NSA intercepted the Mega message in January 1997. It may well turn out that, as the FBI was watching the Israelis to learn more about Mega, they stumbled upon these two lobbyists who regularly met with Israeli diplomats and suspected they were part of the plot.

Franklin's lawyer, Plato Cacheris, says that the FBI asked his client in 2004 to cooperate in what he was told was an espionage investigation. Franklin agreed in July 2004 to wear a wire and to tell Weissman about an Iranian plot to target Americans and Israelis in Iraq. "From my knowledge of FBI procedure, this was either an espionage case or an intelligence case," Pomerantz said--a contention supported by interviews with three other government officials.

But the two were never charged with espionage. And, as the indictment shows, the activities the prosecutors contend constitute a criminal conspiracy hardly look like spying. To start, Rosen and Weissman made no efforts to hide their meetings with American and Israeli officials. They met with Franklin in Arlington, Virginia, restaurants. Franklin met with Israeli diplomat Naor Gilon at the Pentagon Officers' Athletic Club. In many instances, Rosen and Weissman discussed their meetings with Franklin on the phone.

Instead, what Rosen's and Weissman's moves look like is lobbying. For example, on June 11, 1999, Weissman had a conversation with an Israeli embassy official identified in the indictment as "Foreign Official 1." During that conversation, Weissman tells the foreign official that he has piqued the interest of a reporter regarding a classified FBI report on the terrorist bombing of a U.S. military complex in Saudi Arabia known as Khobar Towers. On December 12, 2000, Rosen interested a reporter in Iraq policy options shared with him and Weissman by an American government official. (The Jewish Telegraphic Agency last month identified that official as former National Security Council Middle East analyst Kenneth Pollack.) When Franklin finally enters the picture, he attempts to enlist Rosen's help in obtaining a job at the National Security Council and presses him to warn the White House about Iran's nefarious intentions against American soldiers in Iraq.

"If there is a conviction in this case, anyone who talks to anyone in government could be liable if he discusses the substance of the conversation with any foreign national or a reporter," says Morris Amitay, a former executive director of AIPAC. (The current leadership of AIPAC has taken a very different view of the prosecution. Following the August 4 indictment, AIPAC spokesman Patrick Dorton said, "AIPAC dismissed Rosen and Weissman, because they engaged in conduct that was not part of their jobs, and because this conduct did not comport in any way with the standards that AIPAC expects of its employees.")

The potential chilling effect the Rosen and Weissman prosecution may have on the press, government watchdog groups, and lobbyists has brought the two former AIPAC officials plenty of allies. Kate Martin, director of the Center for National Security Studies, a civil liberties group, says, "The truly unprecedented and shocking point of this prosecution is that the government claims that the effort to obtain information for publication is itself a crime." And Steve Aftergood, an intelligence expert at the Federation of American Scientists, notes that "very few people outside of government will ever get their hands on classified documents. But everyone who reads the newspaper is in possession of classified information."

And, arguably, the ability of the press to seek out and publish classified information is more important now than ever before. Last year, the National Archives Information Security Oversight Office, which tracks the proliferation of classified information, said that government agencies reported 15,645,237 decisions to classify material, a 10 percent increase from the year before. It's hard to believe that the Justice Department or the FBI can or should protect that many secrets.

There are those who argue that the war on terrorism necessitates more secrecy than past conflicts. Representative Pete Hoekstra, the chairman of the House Select Committee on Intelligence, says he is so concerned about recent leaks that he plans to hold hearings, beginning this month, on whether it's necessary to revise the espionage statute to give the Justice Department more authority to prosecute leakers. But Hoekstra also wants to revise the way information is classified to curb what he calls "excessive overclassification."

Until that happens, leaks arguably serve a vital function in U.S. democracy--helping to ensure that the public can make informed decisions about national security policy. As Max Frankel, the former executive editor of The New York Times, put it in 1971, during the Nixon administration's case against the paper for printing the Pentagon Papers, "[P]ractically everything that our Government does, plans, thinks, hears and contemplates in the realms of foreign policy is stamped and treated as secret--and then unraveled by that same Government, by the Congress and by the press in one continuing round of professional and social contacts and cooperative and competitive exchanges of information." The question--to be decided by a Virginia jury next year--is whether that unraveling will continue any longer.